Rule 206 ELECTRONIC CITATION: 2000 FED App. 0174P (6th Cir.) File Name: 00a0174p.06… v. E. I. Du Pont De Nemours Company

*The Honorable Richard D. Cudahy, Circuit Judge of the United
States Court of Appeals for the Seventh Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0174P (6th Cir.)
File Name: 00a0174p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
S HARON B. P OLLARD ,
Plaintiff-Appellee/
Cross-Appellant,
v.
E. I. DU P ONT DE NEMOURS
C OMPANY ,
Defendant-Appellant/
Cross-Appellee.
;>

1
Nos. 98-6317/
6319; 99-5125
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 95-03010—Jon Phipps McCalla, District Judge.
Argued: May 4, 2000
Decided and Filed: May 26, 2000
Before: MERRITT, CLAY, and CUDAHY*, Circuit
Judges.

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2 Pollard v. E. I. DuPont
de Nemours Co.
Nos. 98-6317/6319; 99-5125
_________________
COUNSEL
ARGUED: N. Victoria Holladay, WYATT, TARRANT &
COMBS, Memphis, Tennessee, for Appellant. Kathleen L.
Caldwell, TAYLOR, HALLIBURTON, LEDBETTER &
CALDWELL, Memphis, Tennessee, for Appellee.
ON BRIEF: John S. Wilson, III, N. Victoria Holladay,
WYATT, TARRANT & COMBS, Memphis, Tennessee,
J. Michael Brown, WYATT, TARRANT & COMBS,
Louisville, Kentucky, for Appellant. Kathleen L. Caldwell,
TAYLOR, HALLIBURTON, LEDBETTER & CALDWELL,
Memphis, Tennessee, Alayne B. Adams, Memphis,
Tennessee, for Appellee. Brian Owsley, EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, OFFICE
OF THE GENERAL COUNSEL, Washington, D.C., for
Amicus Curiae.
_________________
OPINION
_________________
MERRITT, Circuit Judge. Sharon Pollard and her husband
brought this action against her employer, DuPont, for
“continuing harassment based on her sex since 1987” under
Title VII, as well as the common law injuries of intentional
infliction of emotional distress, negligent supervision, and
loss of consortium. The district court found that she was
subjected to co-worker hostile work environment sexual
harassment, that her DuPont supervisors were well aware of
the discrimination, and that it resulted in a medical leave of
absence from her job for psychological assistance and her
eventual dismissal for refusing to return to the same hostile
environment. We agree with the district court that the record
demonstrates that DuPont employees engaged in flagrant
discrimination based on gender and that DuPont managers
and supervisors did not take adequate steps to stop it.

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22 Pollard v. E. I. DuPont
de Nemours Co.
Nos. 98-6317/6319; 99-5125
which Pollard endured over a period of months and years has
been characterized as a type of slow torture. Her work was
sabotaged, her personal safety was compromised, she was
subjected to juvenile pranks intended to force her to resign
from the shift, and she was repeatedly informed of her co-
workers' belief in the inferiority of women. We found
ourselves, after reviewing the record, proclaiming a sense of
moral outrage that DuPont managers allowed the conduct of
the men in the peroxide area to persist for years in silence,
and therefore silent approval. Inaction by an employer, or
another actor in a position to exercise control, in the face of
continuous, deliberate, degrading treatment of another may
rise to the level of intentional infliction of emotional distress.
The tort would be unnecessary in our law as a deterrent if
assault or physical harm were always made a necessary
element.
We conclude that material issues of fact are presented by
the outrageous nature of the conduct of DuPont employees
together with the refusal of its managers to correct the
situation and its blanket, continuing official denial in the face
of contrary facts that discrimination based on gender occurred
or that its managers were aware of the discrimination. A fact
finder at the trial level will hear the case on remand and
decide whether the plaintiff has met the standard enunciated
by the Tennessee courts for the tort of intentional infliction of
emotional distress. We therefore REVERSE the district
court's decision to grant summary judgment to DuPont on this
issue and REMAND for trial. Otherwise we AFFIRM the
judgment of the district court. Plaintiff's motion to strike
Pollard's reply brief is denied.
Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont
de Nemours Co.
3
The claim of sexual harassment was tried before the court
instead of a jury. Judge McCalla was so persuaded by
Pollard’s claim that in his order he concluded that “[t]his is a
case of wretched indifference to an employee who was slowly
drowning in an environment that was completely
unacceptable, while her employer sat by and watched.” The
court awarded Pollard $107,364 in back pay and benefits,
$300,000 in compensatory damages, the maximum permitted
by the statutory cap, and attorney’s fees in the amount of
$252,997.38. DuPont now appeals the court’s decisions,
arguing 1) that there was no harassment or discrimination
based on gender and that the trial court’s factual finding that
DuPont had actual knowledge of and responded indifferently
to Pollard’s harassment was clearly erroneous, 2) that the
denial of judgment as a matter of law was improper because
Pollard’s claim was one of retaliation, not harassment, 3) that
Pollard’s harassment claim failed because she failed to show
disparate treatment, 4) that judicial bias, hostility, and
predetermination of facts precluded DuPont’s receipt of a fair
trial, and 5) that the award of attorney's fees to plaintiff was
unreasonable.
Pollard cross-appeals on the bases that 1) front pay should
not be subject to limitations on damages under § 1981a, 2) the
statutory cap on compensatory damages is unconstitutional
because it violates the doctrine of separation of powers and
the Equal Protection Clause, and 3) the district court erred in
granting summary judgment on Pollard’s claim of intentional
infliction of emotional distress.
I. Facts
The district court’s findings of fact are summarized as
follows: Pollard began working for DuPont in 1977. In 1978
she was promoted to “assistant operator,” and she was
transferred to the hydrogen peroxide area of the plant in 1979.
Of the approximately 28 employees in peroxide, four were
women. Pollard was promoted to operator in 1987, and
worked on “C” shift as one of the three operators on that shift

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4 Pollard v. E. I. DuPont
de Nemours Co.
Nos. 98-6317/6319; 99-5125
until 1992. On each shift, operator #1 is the control room
operator, and operators #2 and #3 work in other areas of
peroxide manufacture, keeping the pipes, valves and other
machinery operating. Each operator’s duties are different and
none is superior in rank to the others. While Pollard was
working on “C” shift, one of the assistant operators named
Rory Brico refused to take direction from plaintiff because
she was a woman. He placed a Bible on her desk open to the
passage “I do not permit a woman to teach or have authority
over man. She must be silent.”
After that incident, plaintiff was transferred and became the
#3 operator on “A” shift in 1992. The other operators on her
shift were Steve Carney, the control room operator, and Jerry
Lee, and the assistant operators were named Moody, Walker,
and Cobb. The shift supervisor was David Swartz. During
1992 and 1993, the members of “A” shift got along without
incident. In February 1994 the atmosphere abruptly changed.
DuPont announced that it was going to participate in national
Take Your Daughters to Work Day in April 1994, and Pollard
was asked to give a talk to a group of girls coming to visit the
plant. Some of the men on “A” shift, particularly Steve
Carney and Jerry Lee, loudly complained about DuPont’s
participation in the program. A number of other men in
peroxide were also against it, and they circulated an email
entitled “Bull Malarky” to everyone in the plant discussing
their displeasure with the program.
After plaintiff had discussions with both Steve Carney and
Jerry Lee about Take Your Daughters to Work Day in early
1994, all of the men on the shift (with the exception of Mark
Cobb, an assistant operator), stopped talking to plaintiff.
Cobb’s testimony, which was basically undisputed, indicated
that Steve Carney, the control room operator, instructed all of
the men on “A” shift to not eat with her, share food with her,
be in the break room with her, or talk to her, and that Carney
instructed the men not to follow any of Pollard’s instructions
without consulting with him first. Carney admitted in his
Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont
de Nemours Co.
21
cornerstone of our entire body of civil rights law. In a
political compromise, the Civil Rights Act of 1991 was
limited in the remedies which it would provide due to a belief
that unlimited damages for all forms of discrimination would
force employers to institute hiring quotas for their own
economic safety. See 137 Cong. Rec. S15472-01 (discussing
the fear of quotas that drove the compromise which was
reached in the Civil Rights Act of 1991). The adoption of the
provision saving the remedies available under section 1981
was rationally related to the legitimate purpose of creating
reasonable damages available to all other victims of
intentional discrimination without being forced to limit the
damages already available to victims of racial and ethnic
discrimination.
For the foregoing reasons, we AFFIRM the opinion of the
district court limiting plaintiff’s award pursuant to 42 U.S.C.
§ 1981a.
VII. Summary Judgment for the Defense on the Common
Law Claims
Finally, plaintiff cross-appeals the district court’s decision
to grant summary judgment for the defense on plaintiff’s
claim of intentional infliction of emotional distress. The
conduct alleged by a plaintiff must satisfy an extremely high
burden in order to survive a motion for summary judgment
with respect to a claim of intentional infliction of emotional
distress in Tennessee. The district court in this case correctly
quoted the appropriate language from Dunn v. Moto Photo,
Inc., 828 S.W.2d 747, 751 (Tenn. Ct. App. 1991), saying that
the conduct must be that which would be deemed utterly
intolerable in a civilized society. That case makes it clear that
criminal, tortious, intentional, or malicious conduct does not
automatically satisfy the standard. We believe, however, that
the intentional and malicious conduct found by the district
court in this case is unusually egregious and raises a factual
issue with respect to the outrageousness of the behavior
involved. The sort of daily, consistent harassing behavior

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20 Pollard v. E. I. DuPont
de Nemours Co.
Nos. 98-6317/6319; 99-5125
Pollard also argues that the statutory damages provision
violates the Equal Protection Clause of the Fourteenth
Amendment in that it unfairly discriminates among those
persons who wish to vindicate their rights with respect to
racial discrimination and those who wish to vindicate their
rights with respect to gender discrimination. Since the statute
at issue is a federal one, we assume that plaintiff meant to
invoke the implied equal protection clause inherent in the Due
Process Clause of the Fifth Amendment, which is applicable
to the federal government. The parties agree that the statute
must stand if it bears a rational relationship to any legitimate
articulated government purpose.
42 U.S.C. § 1981a places a $300,000 statutory cap on all
intentional discrimination on the basis of race, national origin,
sex, religion, or disability (as defined in the Americans with
Disabilities Act). The statute is inherently equitable on its
face. The difference in the application of this statute in
situations of gender or race discrimination occurs due to a
provision in the Act which states that nothing in section
1981a is to be construed as in any way limiting the remedies
provided in section 1981 itself, which does not limit recovery
for intentional discrimination based upon race or national
origin. However, section 1981 provides relief for a different
type of claim than encompassed by the remedies available to
plaintiff in section 1981a. Section 1981 provides for relief
from discrimination in the making and enforcing of contracts,
while section 1981a provides for relief purely from intentional
discrimination in the employment context. While section
1981 includes contracts for employment, it also includes
contracts for admission to organizations, insurance and other
business contracts with private persons or corporations, and
admission to schools. Plaintiff cannot therefore be said to be
“similarly situated” with section 1981 claimants.
Even if plaintiff is similarly situated with a section 1981
claimant due to the fact that employment discrimination is
covered under both acts, her claim still fails. Discrimination
on the basis of race and national origin is indisputably the
Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont
de Nemours Co.
5
testimony that “it was a possibility” that he had told the other
men to disregard Pollard’s directions.
It was common knowledge in the peroxide area that many
of the men including Carney, Jerry Lee, and Rory Brico (of
the Bible verse incident) did not approve of women working
in the peroxide department. Testimony proved that Carney
made remarks to this effect approximately five times per
week, consistently, and that Carney routinely referred to
women as “bitches,” “cunts,” “heifers,” and “split tails.” This
language was commonly used by several men in peroxide,
and Carney admitted that he used the terms to refer to women
in general and to plaintiff in particular. In addition, DuPont
had a company-sponsor support group called the Women’s
Network which the men vocally disapproved of Pollard
attending. Plaintiff worked in this hostile environment for the
next year and half.
In May 1994, after about two months of this treatment,
David Swartz, the shift supervisor, held a training meeting.
During a break in the meeting, Carney and Walker were
having a discussion about a girl’s softball team during which
Carney said “that heifer can’t coach” and “women have no
business coaching” in reference to the woman who coached
the team. Plaintiff was seated across the table, became upset,
and asked to leave the meeting. She went to the nurse’s
station and asked the nurse to call David Swartz. When
Swartz arrived, Pollard told Swartz that she could not take it
anymore and that she was tired of the men always saying
women couldn’t do anything and degrading women. Swartz
spoke with his supervisor about the incident, and they decided
that Swartz should speak with the men individually about it.
With the exception of Walker, none of the men on the shift
remembered Swartz speaking with them about it. Carney
testified that Swartz did approach him about not
communicating with plaintiff immediately after the tension
started in February, but that Swartz gave up on trying to talk
to him about it because, according to Carney, “he knows I’m
hardheaded . . . [and there] wasn’t no sense in saying anything

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6 Pollard v. E. I. DuPont
de Nemours Co.
Nos. 98-6317/6319; 99-5125
else.” In other words, Carney made it plain he was not going
to change his behavior.
Swartz testified that he knew there was tension on the shift
beginning in the spring of 1994 and that it did not improve for
the rest of the year. He specifically testified that plaintiff
complained to him about the lack of communication and
isolation and other gender-based conduct on several
occasions. The situation worsened in the summer of 1994.
Plaintiff and Mark Cobb testified that Carney would go so far
as to set off false alarms in plaintiff’s area, causing her to run
around the peroxide area in search of a non-existent problem.
Cobb testified that Carney bragged to the other men that this
was his way of showing that he, a man, was in control. If a
false alarm was set while Pollard was on break cooking her
dinner, the men would turn up the stove to burn her food
while she was searching for the problem. In addition, Cobb
testified that there were numerous incidents during which
Carney would not tell plaintiff about actual alarms in her area.
Plaintiff would therefore not respond to the problem, and it
would appear to the operator on the next shift that she was not
doing her job.
Plaintiff’s job duties included monitoring the vaporizers in
the peroxide tanks and determining when they should be
moved. She was to sample the peroxide in a tank one hour
after it was moved, and any delay would result in a weak
product. Carney admitted instructing the assistant operators
on several occasions to remove the vaporizers from the tanks
earlier than plaintiff instructed without telling her. Again, this
made it appear to the operator on the next shift that plaintiff
was not doing her job, and additionally it affected whether
customers would receive their shipments on time. This
happened approximately seven times in 1994 and 1995,
according to Pollard, with the last incident occurring in July
1995. After the first incident she spoke to the assistant
operators about it, and they informed her that they were
following Carney’s instructions. After the second incident,
Pollard spoke with Swartz about the problem. Pollard
Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont
de Nemours Co.
19
other Circuits have reached a conclusion contrary to Hudson.
See Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336,
1348-49 (D.C. Cir. 1999); Medlock v. Ortho Biotech, Inc.,
164 F.3d 545, 556 (10th Cir. 1999); Kramer v. Logan County
Sch. Dist. No. R-1, 157 F.3d 620, 625-26 (8th Cir. 1998). See
also Rivera v. Baccarat, Inc., 34 F. Supp.2d 870, 878
(S.D.N.Y. 1999); Bizelli v. Parker Amchem, 17 F. Supp.2d
949, 954 n.2 (E.D. Mo. 1998).
We agree with these arguments, but our hands are tied.
One panel of this court may not overturn the decision of
another panel of this court--that may only be accomplished
through an en banc consideration of the argument. Plaintiff
does not purport to distinguish Hudson. Therefore, we must
decline to overturn the district court’s decision that front pay
is included in the compensatory damages statutory cap found
at 42 U.S.C. § 1981a.
VI. Constitutionality of the Statutory Cap on Damages
Plaintiff cross-appeals on the basis that the statutory cap on
compensatory damages found at 42 U.S.C. § 1981a is an
unconstitutional violation of the Separation of Powers
doctrine. Pollard argues that by creating the statutory cap,
Congress impermissibly encroached upon the judiciary and its
“traditional responsibility” for assuring against excessive
verdicts on a case-by-case basis. We do not find this
argument persuasive. Congress created Title VII, and
Congress may designate the remedies under Title VII. See
Northern Pipeline Construction v. Marathon Pipe Line Co.,
458 U.S. 50, 83-84 (1982) (plurality opinion) (holding that
where Congress creates a statutory right, “it clearly has the
discretion, in defining that right, to create presumptions, or
assign burdens of proof, or prescribe remedies.”) The fact
that the judicial branch is limited in the amount of damages
which it may award does not mean that its ability to decide
cases is being impaired by Congress.

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18 Pollard v. E. I. DuPont
de Nemours Co.
Nos. 98-6317/6319; 99-5125
argues that the attorney’s fees are excessively high. Plaintiff
argues only that the fees were “reasonable.” Neither party
gives any explanation, either with or without mathematical
calculations, as to why the fees were “reasonable” or
“unreasonable.” Without a more specific claim that the
attorney’s fees were unreasonable, it is difficult to conclude
that the award constituted an abuse of discretion. This was a
hard-fought case which has gone on for four years. We are
offered no basis for setting aside the fees, and therefore
AFFIRM the district court's award of attorney's fees.
V. Statutory Limitation of Front Pay
Pollard cross-appeals on the basis that front pay should not
be subject to the limitations on “compensatory damages”
under 42 U.S.C. § 1981a. The district court noted that it was
bound by this Circuit’s decision in Hudson v. Reno, 130 F.3d
1193 (6th Cir. 1997), which held that front pay was subject to
the $300,000 statutory cap because front pay was an element
of future pecuniary losses. Pollard now argues that front pay
is not an element of future pecuniary losses, but is instead a
replacement for the remedy of reinstatement in situations
where reinstatement would be inappropriate. The Equal
Employment Opportunity Commission, in an amicus brief,
agrees with Pollard that the Hudson case was wrongly
decided.
First, the argument is made that § 1981a, by its very terms,
explicitly excludes remedies which were traditionally
available under Title VII from the statutory cap, and notes that
front pay was a traditionally available remedy. Second, the
argument is made that the legislative history of the statutory
cap on compensatory damages clearly indicates that front pay
was not intended to be included in it. Third, plaintiff claims
that the Hudson decision misinterpreted existing Sixth Circuit
cases examining the nature of front pay as a remedy. And
finally, Pollard and the EEOC argue that public policy
concerns weigh in favor of excluding front pay from the
$300,000 statutory cap on compensatory damages and that
Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont
de Nemours Co.
7
discussed these ongoing communication problems with
Swartz on numerous occasions. Swartz would tell Carney
that he must call out the alarms and communicate with
plaintiff, but Carney would tell Swartz that he was doing his
job, and that Pollard was simply not doing her job. Swartz
did not investigate further or discipline Carney. Carney was
never suspended or fired for this behavior.
During the summer of 1994 plaintiff found the tires on the
bicycle she rode from the gate to her section of the plant had
been slashed. That day, Pollard complained to Swartz that
she suspected Carney had done it. Swartz spoke with Carney,
and he denied having done it. Swartz did not investigate
further.
In December 1994, two of the assistant operators, Mark
Cobb and David Walker, approached Swartz and asked him
to call a meeting to discuss the treatment of Pollard by Carney
and the other men. Swartz scheduled a meeting which they
called the “first healing meeting.” Carney was on vacation
the day of the meeting. At the meeting, Walker and Moody
told Pollard that Carney told them not to talk to her or
communicate with her, and that Carney told them that Pollard
was “keeping a book on them.” Pollard told them that she
was not doing so, and stressed the importance of
communicating with her in order for her to do her job and to
avoid possible dangerous consequences. David Swartz was
present and heard all of plaintiff’s complaints at this meeting.
Carney returned from vacation and was angry that a
meeting had been held without him. He demanded a second
meeting. During that meeting, plaintiff reiterated her
concerns about the lack of communication and other
problems. Plaintiff also mentioned her bicycle tire slashing,
and told the group of another incident in which she believed
Carney tried to run her off the road as she left the plant.
Carney “got in plaintiff’s face” and said “Nobody in this area
likes you, you’re here all alone, it’s all your own fault.”
When plaintiff asked Swartz if he was going to allow Carney

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8 Pollard v. E. I. DuPont
de Nemours Co.
Nos. 98-6317/6319; 99-5125
to talk to her that way, Swartz said “I think that’s enough”
and ended the meeting. Nothing happened to change the
situation.
The tension continued, and plaintiff continued to complain,
both to Swartz and in her Women’s Network meetings.
Pollard told the group she was afraid for her safety and was
concerned that a dangerous situation might arise in the
peroxide area of which the men would not inform her. Beth
Basham, David Swartz’s supervisor, attended these meetings.
She testified that she heard Pollard’s complaints, and
recognized that the problem in the peroxide area was due to
the male workers not accepting a woman working in that area.
In answer to a question on cross-examination, Basham
testified that she was “of the firm belief that plaintiff had been
harassed on account of her sex in the peroxide area.”
Basham, however, never investigated Pollard’s complaints
further.
In the face of this record, and despite the express testimony
of management officials Basham and Swartz that they knew
of the sexual harassment, counsel for DuPont--both at trial
and in their briefs on appeal--maintain that there was no
sexual harassment and that no DuPont managers had any
knowledge of harassment. At oral argument on appeal, the
following testimony from Basham, the general overall
supervisor of the peroxide department, was read to Ms.
N. Victoria Holladay, counsel for DuPont:
Q: And you were of the firm belief that she had been
harassed on account of her sex in the peroxide area,
correct?
A: Yes.
Q: Now, you talked about this situation with Alan
Hubbell on several occasions, did you not?
A: Yes.
Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont
de Nemours Co.
17
Liteky v. United States, 510 U.S. 540, 550 (1994) (quoting In
re J.P. Linahan, Inc., 138 F.2d 650, 654 (2nd Cir. 1943)).
There is no indication in the case at hand that the district
court was in any way personally biased for the plaintiff before
the trial began, nor is there evidence that DuPont was treated
unfairly during the course of the trial. The remarks were
made just prior to the conclusion of the defense case, after the
district court had heard the vast majority of the evidence
before it. In the absence of any evidence that the district court
was unfair in his dealings with the defense during the course
of the trial, it is difficult for us to conclude that the judge was
unfairly biased. In addition, since there was no jury which
could have been improperly influenced by the comments,
there is no compelling reason to subject this case to a retrial.
We believe the court’s comments stemmed from the
conclusions which the judge had rightly formed as part of his
factfinding duty, although the comments were spoken in anger
and moral outrage in response to the injustice and harm
DuPont and some of its employees visited upon plaintiff. It
is difficult to read the record in this case without sympathy for
the plaintiff who endured, without relief, the cruelty of Steve
Carney and other male co-workers at DuPont. We therefore
DENY defendant's motion for a new trial.
IV. Attorney’s Fees
DuPont challenges the district court’s decision to award
plaintiff attorney’s fees. Attorney’s fee awards are reviewed
for an abuse of discretion. See Hensley v. Eckerhart, 461
U.S. 424 (1983). Attorney’s fees are generally awarded for a
reasonable number of hours expended multiplied by a
reasonable fee, and are generally reduced in an amount
reflective of the amount of time spent pursuing claims which
were ultimately unsuccessful. DuPont argues that the award
of attorney’s fees ($252,997.38) should have been reduced
due to the district court’s summary judgment for the defense
on the issues of intentional infliction of emotional distress,
negligent supervision, and loss of consortium. DuPont also

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16 Pollard v. E. I. DuPont
de Nemours Co.
Nos. 98-6317/6319; 99-5125
final defense witness and the highest-ranking member of
DuPont management who testified, Judge McCalla expressed
his opinions with regard to this case. He angrily challenged
Shaw and questioned him for a period of time, using language
that was hostile and evidenced his desire to inform Shaw of
the ways in which he believed DuPont had erred in their
behavior towards Pollard. The court’s comments seem to
indicate three things: First, that after hearing all of the
testimony (with only the remainder of Shaw’s testimony to be
heard), the court was quite convinced that the witnesses for
the plaintiff were trustworthy and the key witnesses for the
defense (the other members of “A” shift, including Steve
Carney) were lying. Second, the court had also concluded
that DuPont’s actions in attempting to remedy the harassment
were entirely unsatisfactory. And, finally, the court wanted
Bob Shaw to hear his comments on the way DuPont handled
this case so that DuPont could learn from its mistakes in this
case and proceed differently in the future.
The standard of behavior expected of a judge is different
when the case is tried to the bench rather than before a jury.
The Supreme Court has recently concluded in language
applicable to the conduct in this case:
The judge who presides at a trial may, upon completion
of the evidence, be exceedingly ill disposed towards the
defendant, who has been shown to be a thoroughly
reprehensible person. But the judge is not thereby
recusable for bias or prejudice, since his knowledge and
the opinion it produced were properly and necessarily
acquired in the course of the proceedings, and are indeed
sometimes (as in a bench trial) necessary to completion
of the judge's task. As Judge Jerome Frank pithily put it:
“Impartiality is not gullibility. Disinterestedness does
not mean child-like innocence. If the judge did not form
judgments of the actors in those court- house dramas
called trials, he could never render decisions.”
Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont
de Nemours Co.
9
Q: And Mr. Hubbell’s position in 1994-‘95 was what?
A: He was the area manager of hydrogen peroxide.
Joint Appendix at 412. In the face of this testimony expressly
acknowledging sexual harassment and knowledge, counsel
maintained that there was no such harassment and no
knowledge by DuPont management.
In May 1995, a specialist in diversity training from DuPont
headquarters named Bernie Scales attended the Women’s
Network meeting. Pollard told Scales of the problems in the
peroxide area. Scales spoke to the plant manager about the
problem, who subsequently spoke to Bob Shaw, employee
relations manager for the plant. Shaw, Lee Ann Rice, and
Gary Fish met with plaintiff on May 28, 1995 to discuss her
complaints. According to Shaw and Rice, Pollard recounted
fully all of her complaints at this meeting. Subsequently,
Shaw and Rice spoke to Carney about his behavior. Carney
never received a formal written reprimand, was never
suspended, transferred, demoted, terminated, or in any other
way disciplined for his behavior. There was no further
investigation.
Carney’s behavior improved for about a month (June
1995); he then returned to his old patterns of behavior in early
July 1995. Plaintiff asked David Swartz to transfer her to
another shift. Swartz offered to transfer her to the control
room operator position on shift “C” with Rory Bricco, the
man who had refused to take direction from her when he had
been an assistant operator under her some years before, and
who had initiated the Bible incident at that time. Plaintiff
declined that offer. In late July 1995, Pollard discovered a
highlighted copy of that same Bible verse in her locker,
stating “A woman should learn in quietness and full
submission. I do not permit a woman to teach or have
authority over a man, she must be silent.” Upon finding the
note, plaintiff requested a medical leave of absence from
DuPont.

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10 Pollard v. E. I. DuPont
de Nemours Co.
Nos. 98-6317/6319; 99-5125
In order to investigate the bible verse incident, DuPont
formed a list of identical questions, answerable by a simple
yes or no. When each employee denied having knowledge of
the incident, no further questions were asked and the
investigation was stopped. Carney himself was never
questioned about his knowledge of who had placed the verse
in Pollard’s locker because he was on vacation at the time it
occurred.
After Pollard left “A” shift, the entire shift, including
supervisor David Swartz, held a party. They taped balloons
to the ceiling and had a fish fry. The purpose of the party was
to celebrate Pollard’s departure, as Carney admitted in his
testimony. Carney said at the party, “Glad the bitch is gone,
glad the bitch is not coming back.” David Swartz told Carney
to shut up, that he did not need to hear Carney saying those
things in case of future investigations concerning Pollard.
Plaintiff was on short-term disability leave for six months
based in part on the advice of DuPont's psychologist. DuPont
scheduled a “return to work” meeting in February of 1996 in
spite of the psychologist's advice to the contrary, at which
time DuPont told Pollard that they could not guarantee that
she would not be put back on a shift with Steve Carney and
the other members of “A” shift. When plaintiff declined to
return to work under those conditions, DuPont fired her.
II. Hostile Work Environment Sexual Harassment
After reviewing the Supreme Court’s decision in
Burlington Industries v. Ellerth, 524 U.S. 742 (1998), we
recently concluded that a plaintiff seeking to establish a
company’s liability for acts of her co-workers must show that
the employer “knew or should have known of the charged
sexual harassment and failed unreasonably to take prompt and
appropriate corrective action.” Fenton v. HiSan, Inc., 174
F.3d 827, 830 (6th Cir. 1999).
Defendant DuPont challenges the district court’s
determination that plaintiff was harassed on the basis of her
Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont
de Nemours Co.
15
work environment sexual harassment. The federal courts treat
the two types of cases differently for good reason. The
McDonnell Douglas framework is meant to prove that
conduct which might have some otherwise legitimate motive
(such as promoting a man instead of a woman) was in fact
based upon discriminatory motive. When a plaintiff proves
that a hostile work environment existed, there is no legitimate
justification for such an environment, and thus recourse to the
McDonnell Douglas test is not warranted. A defendant’s only
option is to deny the charges or argue that defendant
effectively remedied the situation, not to submit that the
hostile environment was in some way warranted.
Additionally, as the Supreme Court recognized in Meritor
Savings Bank v. Vinson, 477 U.S. 57, 63-68 (1986), the proof
of a hostile work environment is in fact part of “‘the entire
spectrum of disparate treatment of men and women’” in the
workplace, which is in no way limited to actions which
economically impact a plaintiff, such as decisions to hire,
promote, or fire an employee. Id. at 64 (quoting Los Angeles
Dept. of Water and Power v. Manhart, 435 U.S. 702, 707
(1978)). In other words, the Supreme Court has long
recognized that proof of hostile work environment sexual
harassment is proof of disparate treatment. For these reasons,
it is one of the most basic tenets of employment
discrimination law that it is not necessary to prove economic
disparate treatment in order to make out a prima facie case of
coworker hostile environment sexual harassment. The
defendant's argument to the contrary is based upon a
fundamental misunderstanding of the law.
For the foregoing reasons, we AFFIRM the district court’s
opinion finding DuPont liable for the co-worker sexual
harassment of its employees.
III. Judicial Bias
DuPont also claims that the trial judge was so biased in his
approach to this trial that DuPont was denied the fundamental
right to a fair trial. During the testimony of Bob Shaw, the

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14 Pollard v. E. I. DuPont
de Nemours Co.
Nos. 98-6317/6319; 99-5125
investigation, even if ineffective, should shield DuPont from
liability; and 4) that her complaints to her direct supervisor,
David Swartz, as well as the complaints made in the context
of Women’s Network meetings, were not actually complaints
to management about harassing conduct, and therefore did not
put DuPont on actual notice of her problems. These
arguments are not persuasive. Not only was it reasonable for
the district court to conclude that members of DuPont
management were actually aware of Pollard’s harassment
complaints, the district court was justified in finding that
DuPont’s reaction to Pollard’s complaints did not constitute
a “good faith” effort to remedy the situation. As noted above,
this trial produced substantial evidence that several members
of DuPont management were aware of Pollard’s situation,
both through her complaints and through first-hand
experience, but they allowed the situation to fester without
definitive action on the part of management. Steve Carney’s
behavior toward Pollard was well known. No disciplinary
action was taken against him.
We next address DuPont’s argument that Pollard’s claim
was one of retaliation, not sexual harassment, and thus that
the decision holding that sexual harassment existed must be
reversed. This is a red herring argument. There is nothing in
Pollard’s testimony, her complaints to DuPont, or her
complaint initiating this action which indicates that DuPont
took adverse action against her for complaining of the
treatment she was receiving on “A” shift. The complaints
indicate quite clearly that Pollard’s problem was with her
treatment by the other members of her shift and DuPont’s
inaction with respect to that problem, not any further action
which DuPont took against her.
Finally, we turn to DuPont’s claim that plaintiff cannot
prevail on her claim of hostile work environment sexual
harassment because she did not prove disparate treatment.
Disparate treatment sexual harassment (assuming that by
“disparate treatment” DuPont means harassment subject to the
McDonnell Douglas test) is inherently different from hostile
Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont
de Nemours Co.
11
sex because the conduct, according to DuPont, was gender-
neutral and non-sexual in nature. In order to prove that forms
of conduct not inviting sexual relations constituted sexual
harassment, plaintiff “‘must show that but for the fact of her
sex, she would not have been the object of harassment.’”
Williams v. General Motors Corp., 187 F.3d 553, 565 (6th
Cir. 1999) (quoting Henson v. City of Dundee, 682 F.2d 897,
904 (11th Cir. 1982)).
As the district court found, there was overwhelming
testimony as to the anti-female animus which the men in
peroxide consistently demonstrated, specifically toward
women working in the peroxide area (as opposed to women
filling traditionally “female” jobs, such as secretaries and
office workers in other areas of the DuPont compound). We
have recited these facts in detail above.
Plaintiff must prove that, after considering the totality of
the circumstances and the context in which certain treatment
of plaintiff occurred, the harassment which she sustained was
sufficiently pervasive and severe as to alter the conditions of
her employment and create an abusive working environment.
Each alleged act of harassment must not be viewed in a
vacuum, but must be considered together with the other acts.
Characteristics such as their frequency, intensity, and whether
they “merely” created psychological trauma or whether they
actually interfered with a plaintiff’s work are all factors to be
considered.
In the recent Williams decision, we determined that the
following behavior was severe and pervasive enough to
constitute harassment: co-workers who used foul language,
such as “fuck” and “slut”; sexual innuendos concerning the
plaintiff’s breasts or sexual prowess; tasteless sexually-based
jokes and puns directed toward plaintiff; co-workers
conspiring against her in order to force her onto another shift;
objects glued to the top of her desk; being told “I’m sick and
tired of these fucking women” and having a box thrown at her
simultaneously; being denied overtime and breaks; and other

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12 Pollard v. E. I. DuPont
de Nemours Co.
Nos. 98-6317/6319; 99-5125
“pranks,” such as being locked in a room, or finding materials
blocking her way into or out of an area of the plant. See
Williams, 187 F.3d at 559. This behavior seems clearly to
encompass many types of sexual harassment: actual sexual
propositioning, offensive language or behavior about women
in general and women in the workplace, and non-sexual
actions directed toward a plaintiff in order to interfere with
her work. Plaintiff here proved daily sexually degrading
comments about women which often occurred outside of her
hearing; a co-worker who instructed the men working as her
assistants not to take direction from plaintiff or talk to her at
any time because of her gender; several incidents of plaintiff
not being informed of facts concerning her job which would
result in an appearance of incompetence on her part, and
which could be potentially physically dangerous to her and to
other members of the plant; isolated incidents occurring
within her hearing of women being called “heifers” and being
degraded for their inability to accomplish tasks as well as
men; being subjected to false alarms and practical jokes, such
as her dinner being burned, with the alleged intent of driving
plaintiff away from her shift; and the Bible verse concerning
women’s proper submissive role being placed in her locker.
This conduct constitutes severe and pervasive harassment,
just as severe and pervasive as in Williams and our other co-
worker sexual harassment precedent.
Next, we address the issue of whether or not DuPont
received actual or constructive notice of Pollard’s complaints
and responded reasonably. DuPont challenges the court’s
factual findings, arguing that the findings concerning
DuPont’s lack of responsiveness towards Pollard’s numerous
complaints were clearly erroneous. Specifically, as pointed
out above, DuPont continues to argue that the testimony at
trial failed to establish that DuPont was ever made aware that
any sex-based derogatory comments were addressed to
Pollard. This argument assumes that only sex-based
derogatory language is actionable under Title VII, and fails to
consider the testimony related to a lack of work-related
communication, sabotage of plaintiff’s work, and personal
Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont
de Nemours Co.
13
isolation and harassment, all of which was based on the belief
that women should not work in the peroxide area.
After reviewing the trial testimony in this case, we believe
that the trial court’s findings of fact were correct. The
testimony at trial indicated that plaintiff told her direct
supervisor, David Swartz, of the incidents of harassment on
numerous occasions. David Swartz, in particular, was
independently aware of the language, isolation, and
communication problems on “A” shift through his own
observations of the shift, even absent plaintiff’s complaints to
him. In addition, Beth Basham, David Swartz’s supervisor,
testified that although she believed, based on Pollard’s
complaints during Women’s Network meetings, that Sharon
Pollard was being harassed by her coworkers because they
could not accept a woman working in the peroxide area, she
never initiated any further investigation concerning the
allegations. After the most blatant episode, when Pollard
found the Bible verse in her locker, DuPont management
interviewed the members of “A” shift with a list of yes-or-no
questions, and when they responded “no” to the question
concerning knowledge about the event, the interviews were
concluded. The lack of an admission under such
circumstances is not surprising. No member of the peroxide
area was ever formally reprimanded, suspended, or transferred
to another shift due to any of their actions. Finally, Bob Shaw
confirmed in his testimony that Sharon Pollard was told that
if she returned to work, she would be put back on the same
shift with Steve Carney and the other members of “A” shift,
although a woman would be added to the shift.
This testimony is countered by DuPont’s arguments 1) that
the men were instructed not to behave inappropriately and to
continue to communicate with Pollard as to work-related
matters once DuPont became aware of Pollard’s work
isolation; 2) that DuPont posted notices explaining what
constituted inappropriate conduct after learning of the July
1995 Bible verse incident and explained that conduct of that
nature would result in termination; 3) that a good-faith

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